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What are the key complexities that land reform policy has so far failed to address?

by Ruth Hall and Karin Kleinbooi on 7 Sep 2012

At the Carnegie 3 conference, Strategies to Overcome Poverty and Inequality, held in the first week of September 2012, a focus session on land reform suggested that all aspects of land reform – restitution, redistribution and tenure reform (both on commercial farms and in communal areas) – have been complex to conceptualise and implement, largely because the power relations involved are so stark and the mechanisms so laborious. On a positive note, substantial learning is now available on what the difficulties have been. While new research may be desirable, existing research can help to shape new strategies for land reform if the right fora exist for engagement.

Horman Chitonge asked ‘can land make a difference?’ A household survey in Chris Hani District in the Eastern Cape compared those from the communal areas who got land through land reform and those who didn’t. The focus was on Emalahleni and Sakhisizwe local municipalities (around Elliot and Cala). Differences can’t necessarily be attributed to having land, though there was an attempt to ensure that the land reform and control groups were broadly comparable. Land reform projects were varied themselves, with some being large group projects, while others were family projects. Among non-beneficiaries, some had inherited, been allocated (by chiefs) or even bought their own land, while others were landless. Although civil servants are not eligible, some are getting land through land reform. More beneficiaries than non-beneficiaries own livestock (and own more livestock) but interestingly, fewer were involved in crop production, the reason apparently being that land beneficiaries do not live on the farms they’ve been allocated, and so cannot produce labour-intensive crops that require frequent attention. In this study, 10% of land beneficiaries were deriving no income at all (very different from 90% project failure rate cited by the Minister!). Beneficiaries were less likely to be poor than non-beneficiaries but, among those who were poor, the poverty gap was higher (ie. the poor among land beneficiaries are poorer than the poor among non-beneficiaries), suggesting that some land projects are targeting the better off, while others are targeting the poor. Because of the grant system through which people got the land, ‘individual’ projects involve those who are financially better off (they could afford to buy farms without bringing in many other beneficiaries) than the ‘group’ projects (where groups were large because they were unable to contribute their own capital and relied entirely on state land purchase grants) – though Chitonge’s analysis of this data has not yet looked at differences between the individual and group projects. Many ostensibly ‘landless’ households in fact own livestock and graze them on commonage land – this is a key buffer against extreme poverty. Very few beneficiary households access support services. Chitonge argued that policy implications are to focus on the poor rather than to focus on those who are generally better off, as seems to be the case now.

Michelle Hay provided a short history of a situation in Mopani District, Limpopo, where land claims have conflicted with the desire of farm dwellers and others to secure their land rights. Restitution has created a stalemate in development: because of pending claims, redistribution cannot proceed. Many claims are conflicting, because of the nature of dispossession which happened in complex ways over an extended period. Competing claims include those between different groups of people, and different authorities now claiming to represent the same groups. There was very little formal land ownership by black people prior to 1913 and most people accessed land on privately owned farms, state farms and farms owned by land companies – there was great diversity in how people accessed land, and this was not (as seems to be assumed now) in some idealised tribal units. Historical research shows that rights to land prior to forced removals were previously strongest at the household level, not at the community or chiefly level, yet restitution is restoring land to groups as if they shared land, and lived in coherent groups under traditional authority structures. The Commission on Restitution of Land Rights doesn’t have the capacity to do historical research: much of its research on claims is outsourced, and it struggles to integrate archival, oral and other historical sources. To consolidate claims, people are being encouraged to join in claiming groups, to push the claims forward. As the claims of those who arrived first are being dealt with first (and are considered ‘original’ owners), such claimants have stronger rights to claim than ‘latecomers’; in Mopani, this translates into Sotho and Venda people having stronger claims than Tsonga people. The latter then are suggesting that they should be paid out compensation, as they are not aiming to return to the land, and feel robbed of their right to restitution. The purposes of restitution, as opposed to redistribution, need to be clarified. There is a need also to cater for the different interests of claimants, rather than assuming that all people within claims make up ‘communities’.

Regarding municipal commonage, Doreen Atkinson argued that the land owned by municipalities that can (and should) be made available for poor people to use. This is an important public good, and should be promoted through the land reform programme; why it has not is quite mystifying, but probably has something to do with the over-emphasis on establishing commercial farmers rather than supporting livelihoods of poor people who are involved in farming part-time. There has been a lack of understanding of the kind of people who use the commonage, their background, their knowledge base, and their economic goals. No in-depth study has been undertaken of what the motivations and sentiments of commonage users actually are. She concluded by saying commonage development can be an important part of agrarian reform in rural towns as it builds local multipliers and multiple livelihoods. And in this regard there is a need to align national, provincial and local institutions. There is a need for a new policy on commonage and a necessity to revitalise the debate about commonage as a viable option to accommodate land reform.

Karin Kleinbooi addressed the much-neglected issue of farm workers and farm dwellers living on privately owned farms, and the tenure rights they are supposed to have under Section 25 of the Constitution and related laws. Despite the development of progressive legislation to protect farm dwellers’ land rights in the immediate post-apartheid period (the Extension of Security of Tenure Act and the Land Reform (Labour Tenants) Act), in practice government has failed to enforce these laws. In its draft Land Tenure Security Bill published in 2010, the Department for Rural Development and Land Reform portrayed ‘agrivillages’ as a ‘win-win’ solution to the problems of tenure insecurity, eviction, and poverty faced by farm dwellers. Instead of addressing tenure insecurity on farms, it proposed off-farm settlement in agrivillages as the way in which to provide security of tenure to farm dwellers. Based on its track record, and the absence of a strategy to deal effectively with evictions or to provide farm dwellers with land and other assets of their own, it’s unclear (even unlikely) that this agrivillages strategy could work. The Bill, now withdrawn, could well be reintroduced in the future. Meanwhile, a proper strategy, linked to the NDP, is needed to consider farm labour and farm tenure in a more integrated way.

Ben Cousins addressed communal tenure, and the crucial question of how secure the situation of nearly a third of all South Africans who live in the ex-Bantustans. This is a major policy vacuum at present. He agreed with Kleinbooi that, in general, tenure remains the poor relation in land reform. He discussed the failure to address communal tenure and the abortive attempt to do so through the Communal Land Rights Act of 2004, which was declared unconstitutional in 2010. It was disappointing that the Constitutional Court did not rule on the substantive shortcomings in the CLRA’s unconstitutionality but rather focused on the procedural incorrectness of the method through which the National Assembly and NCOP dealt with it. The CLRA (and whatever comes to substitute for it in the future, since legislation on communal tenure is required in Section 25 of the Constitution) must be understood in a wider context of policy and law regarding governance in communal areas. The Traditional Leadership Framework Governance Act, the Traditional Affairs Bill and the Traditional Courts Bill reflect political and state support to cultivate relationships with chiefs and to delegate powers to traditional leaders in the administration of land and to deliver the rural vote.

During discussion, a sentiment from the floor was that policy often complicates the already complicated land reform process. Agriculture is largely sidelined in debates about tenure and there is no urgency to deal with it. On farm dwellers, some argued that everybody (farmers in particular) is frustrated with farm dweller tenure. Atkinson suggested we are now ready to make a paradigm shift (‘we have got to cross the Rubicon’) so instead of boxing people into a tenure policy that will keep them in inappropriate situations on farms, we should rather focus on the life prospects for farm dwellers (prospects for welfare, livelihoods and skilling) to help them to come in line with the inevitable structural changes in agriculture. Should they adapt to market realities or the other way around?

Others argued that we cannot continue to ignore the historical relationships that farm dwellers have with land. Some farm dwellers, though, are new to the agricultural sector and do not have historical links to the farms they live on – this varies very substantially across the country (eg. Western Cape is very different from Limpopo). There is a need to consider the longer-term prospects of farm dwellers and the next generation, and to better understand the complexities of reforming tenure rights on privately owned land. Political momentum on this has been lacking, which is why the key act, ESTA, has been largely unimplemented. On communal tenure, participants argued that people in communal areas say that the homeland system (with all the bureaucratic systems and agricultural development corporations it involved) worked better as it at least gave them a livelihood.

I work in the agricultural development field and deal with restitution farms as part of my engagements. There is a greater need for individual control on smaller proportions of this land for individual household purposes as for a common big commercial agricultural objective. Communities are in general not interested or not able to exploit a commercial agricultural operation, before their personal objectives have been met. There interest is more of improving their own direct lively hood firstly and experience of owning a piece of land than a group objective. Therefore to make restitution more effective address the individual needs first, it will take the pressure off the stupid drive to throw money at sustaining the previous activity which no -one are able to save any way. If there is enough land available after distribution for individual needs, a commercial option can be exploited with capable strategic partners /mentors,but not before that because it is a waste of money.

Author: Johan (not verified)

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